U.S. justices to hear Washington appeal of salmon habitat culvert order

SEATTLE — The U.S. Supreme Court will review a court order that could force Washington state to pay billions of dollars to restore salmon habitat by removing barriers that block fish migration — a development the state attorney general is using to try to persuade Western Washington tribes to settle the case.

The justices said Friday they’ll hear the state’s appeal of the ruling by the 9th U.S. Circuit Court of Appeals in San Francisco. That court affirmed a lower court order requiring the state to fix or replace hundreds of culverts, large pipes that allow streams to pass beneath roads but can block migrating salmon if they become clogged or if they’re too steep to navigate.

The ruling stems from a 2001 lawsuit filed by 21 Native American tribes and the Justice Department.

Because the pipes block salmon from reaching their spawning grounds, thus reducing the number of salmon, they deprive the tribes of fishing rights guaranteed by treaty, the lawsuit said.

All tribes on the North Olympic Peninsula — the Jamestown S’Klallam, the Lower Elwha Klallam, the Quileute, Makah, Hoh and Quinault, as well as the Port Gamble S’Klallam — were among those that filed the lawsuit.

Washington state has been working to replace the culverts with structures that allow fish to pass, but at the rate it was fixing them when the case was filed in 2001, it would have taken more than a century to finish the work, the tribes said.

State Attorney General Bob Ferguson acknowledged in a statement Friday that Washington needs to do more to restore salmon runs, and said it shouldn’t take a court order to get the Legislature to act. But he said the 9th Circuit’s ruling went too far, and he hoped the prospect of a potential reversal by the Supreme Court would prompt the tribes to settle.

“Now that the Supreme Court has accepted review of the case, I hope that all 21 tribal governments will agree on a proposal that recognizes the state’s serious concerns with the Ninth Circuit ruling and allows us to continue our conversations,” Ferguson said.

The state argues that its treaties with the tribes created no obligation to restore salmon habitat. The ruling would force it to perform work that wouldn’t benefit salmon, and would also make the state’s taxpayers responsible for fixing problems “largely created by the federal government when it specified the design for the state’s old highway culverts,” Ferguson said.

In a statement, Lorraine Loomis, chairwoman of the Northwest Indian Fisheries Commission, said the tribes are confident the justices will affirm the ruling.

“Instead of continuing to appeal the culvert case, tribes believe the state should use the momentum it has gained over the past four years to finish the job of fixing fish-blocking culverts, and focus on our shared goal of salmon recovery,” Loomis said.

In 2013, U.S. District Judge Ricardo Martinez ordered Washington to fix or replace more than 1,000 culverts blocking access to 1,600 miles of salmon habitat. He gave the state 17 years to reopen about 450 of the worst ones.

The Departments of Fish and Wildlife, Parks, and Natural Resources have stayed on schedule in fixing the culverts on their land, Loomis said. The Department of Transportation would come close to meeting the court’s deadline if it keeps up its recent pace, but might need more money to do so, she said.

Transportation says that by the end of next year, it will have spent close to $200 million responding to the injunction. The agency estimates the cost of full compliance at $2.4 billion.

By the end of this year, fewer than 400 culverts will be left to repair, Loomis said.

“Opening up habitat is one of the most important and cost-effective actions we can take toward salmon recovery,” she said.

“We are losing the battle for salmon recovery because we are losing salmon habitat faster than it can be restored.”